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Microsystems Software, Inc. v. Scandinavia Online AB - 226 F.3d 35 (1st Cir. 2000)


Contempt proceedings operate to ensure that nonparties have had their day in court. In order to hold a nonparty in contempt, a court first must determine that she was in active concert or participation with the party specifically enjoined (typically, the named defendant). This means, of course, that the nonparty must be legally identified with that defendant, or, at least, deemed to have aided and abetted that defendant in the enjoined conduct. The existence of such a linkage makes it fair to bind the nonparty, even if she has not had a separate opportunity to contest the original injunction, because her close alliance with the enjoined defendant adequately assures that her interests were sufficiently represented.


Microsystems Software, Inc. and Mattel, Inc. (collectively, Microsystems), developed and distributed "Cyber Patrol," a blocking device coveted by parents who sought to prevent their children from roaming into salacious Internet venues. The software program contained a secret list of objectionable web sites and, once installed, prevented computer users from accessing those sites. Shortly after Microsystems introduced Cyber Patrol, defendants Jansson and Skala reverse-engineered it and wrote a bypass code that enabled users not only to thwart the program but also to gain access to the list of blocked sites. They then posted the bypass code on their own web sites and gave blanket permission for others to copy it. Appellant nonparties took advantage of this offer and copied the bypass code from defendants' web sites. Thereafter, Microsystems sued defendants in federal district court for injunctive relief. Appellants filed special appearances and proffered oppositions to the motion for preliminary injunction, but did not move to intervene. A permanent injunction was entered, restraining defendants and others from publishing or using the bypass code. Appellants then appealed from the injunction.


Can appellants, nonparties who did not intervene to the case, appeal from the injunction obtained by plaintiffs?




A federal appellate court held that non-parties who had the opportunity to seek intervention, but eschewed that course, lack standing to appeal. Therefore, the court dismissed appellants' petition.   

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